McCarthy Retail Ltd v Shortdistance Carriers CC

JurisdictionSouth Africa
Citation2001 (3) SA 482 (SCA)

McCarthy Retail Ltd v Shortdistance Carriers CC
2001 (3) SA 482 (SCA)

2001 (3) SA p482


Citation

2001 (3) SA 482 (SCA)

Case No

110/99

Court

Supreme Court of Appeal

Judge

Smalberger ADCJ, Harms JA, Olivier JA, Schutz JA and Cameron JA

Heard

February 27, 2001

Judgment

March 16, 2001

Counsel

J C King for the appellant.
P C F van Rooyen for the respondent (respondent's heads of argument having been drawn up by G R Thatcher).

Flynote : Sleutelwoorde B

EnrichmentCondictio sine causa — When available — Garage repairing truck in mistaken belief that it was authorised to do so by owner's insurer — Insurer repudiating claim — Claim instituted against owner of truck for enrichment — Case concerning typical instance of necessary and useful improvements made to owner's property without C contract between repairer and owner — Repairer a lawful or bona fide occupier — Owner impoverished when truck damaged — Owner enriched by receipt of repaired truck without there being countervailing performance on its part juridically connected with that enrichment — Neither insurance policy nor payment of premiums procuring D repairs, but mistaken belief that insurer had instructed them — Policy extraneous to repairs — Owner enriched sine causa — Repairer clearly impoverished — As there was no contract between repairer and insurer or indeed with anyone, there was no one else at whose expense respondent could have been enriched — All general requirements for enrichment liability present. E

Enrichment — Enrichment action — General enrichment action — Semble: One of restraints upon acceptance of general action is belief, or fear, that tide of litigation would be let loose — Such should not last long, once restrictions even on general action are appreciated — Under general action only very few actions would succeed which would not have succeeded under one or other of old F forms of action or continued extensions — More daunting consequence of acceptance is possible need for re-arrangement of old-standing rules — Preferable to let detailed rules stand, and be supplemented by general action which will fill gaps — In rare case, where even extension of old action not sufficing, general action should be recognised — Rules governing it should not be too difficult to establish — Once general G action accepted much less energy would be devoted to correct identification of condictio or actio and more time to identification of elements of enrichment — This not meaning that old structure's relatively few distinctive rules applying only to particular forms of action would disappear.

Appeal — Postponement of — Party opposing application to postpone appeal H has procedural right that appeal should proceed on appointed day — Also in public interest that there should be end to litigation — In order for applicant for postponement to succeed, he or she has to show 'good and strong reason' for grant of such relief — Interests of other litigants and convenience of Court also important. I

Headnote : Kopnota

The respondent's truck had been damaged. It was taken to the appellant's garage, where the respondent's instructions were that it was not to be repaired until the respondent's insurers had given the go-ahead. Due to a misunderstanding between the appellant and the respondent's insurers, the truck was repaired. The respondent's insurance claim was, however, J

2001 (3) SA p483

repudiated, albeit wrongly. The appellant claimed from the respondent the cost of the repairs to the truck by A way of an enrichment claim. The claim was dismissed in a Provincial Division. The day before an appeal to the Supreme Court of Appeal was to be heard the respondent's attorneys had written a letter to the Court informing it that the respondent had briefed new counsel at short notice and that a postponement would be sought. No formal application for a postponement was filed. B

Held, as to the application for postponement, that a party opposing an application to postpone an appeal had a procedural right that the appeal should proceed on the appointed day. It was also in the public interest that there should be an end to litigation. Accordingly, in order for an applicant for a postponement to succeed, he or she had to show a 'good and strong reason' for the grant of such relief. (Paragraph [28] of Schutz JA's judgment at 494D - E.) C

Held, further, that the application for postponement fell short on all counts. There had not been even a serious attempt to provide a 'full and satisfactory explanation' for the respondent's unpreparedness or the lateness of the application. Nor was such explanation as there was on oath. The interests of other litigants and the convenience of the Court were also important. The record and heads had been read by five Judges, variously months or weeks before the D appeal date. The fact that the case had been placed on the roll meant that another case had to wait for the following term and, if a postponement were granted, this consequence would extend into succeeding terms. The application for postponement was accordingly refused. (Paragraphs [31] and [32] of Schutz JA's judgment at 495B/C - D/E.)

Held, further (per Schutz JA; Smalberger JA, Olivier JA and Cameron JA concurring; and per Harms JA E in a separate concurring judgment) that the case concerned a typical instance of necessary and useful improvements made to an owner's property without there being a contract between the repairer and owner. On the facts the appellant had been a lawful or bona fide occupier. The respondent had placed it in possession of the truck in the contemplation that it should be repaired, even though it had not itself instructed those repairs. (Paragraphs [12] and [14] of F Schutz JA's judgment at 489E/F - F and 490B/C and para [2] of Harms JA's judgment at 496C/D - D.)

Held, further, that the respondent had been impoverished when its truck was damaged in an accident. Had it not been insured it would have had to bear the cost of repair. Had it contracted for repairs it would not have been enriched when the repaired truck was returned to it, as it would have had to pay the agreed contract price. G On the face of it, it had been enriched by the receipt of the repaired truck, without there being a countervailing performance on its part juridically connected with that enrichment. (Paragraphs [16] and [17] of Schutz JA's judgment at 490E - F and H - H/I.)

Held, further, that it had not been the insurance policy or the payment of the premiums which had procured the repairs, but the mistaken belief by an agent of the appellant that the insurer H had instructed it to proceed. The policy had been something quite extraneous when it had not given rise to the repairs. Its purpose had been to reimburse the respondent in one way or another should its truck be damaged. As far as the appellant had been concerned all that the payment of the premiums procured was a visit by an insurance assessor, who might have agreed what a reasonable price for the repairs I would be, but who did not instruct that they be effected. The upshot was that the respondent had been enriched sine causa. (Paragraph [17] of Schutz JA's judgment at 490H/I - 491A and para [5] of Harms JA's judgment at 497F - G.)

Held, further, that the appellant had clearly been impoverished. (Paragraph [19] of Schutz JA's judgment at 491I/J.)

Held, further, that, as there was no contract between the appellant and the J

2001 (3) SA p484

insurer or indeed with anyone, there was no one else at whose expense the respondent could have been enriched. A (Paragraph [24] of Schutz JA's judgment at 493H/I - I/J.)

Held, accordingly, that, as all the general requirements for enrichment liability were present, the appellant's action should succeed. (Paragraph [25] of Schutz JA's judgment at 493J.)

Semble (per Schutz JA, Olivier JA and Cameron JA concurring): One of the restraints upon the acceptance of a general B enrichment action is the belief, or fear, that a tide of litigation would be let loose. Initially there may be some surge of litigation, particularly under the emotive banner of 'unjust enrichment'. But it should not last long, once the restrictions even on a general action are appreciated. Under a general action only very few actions would succeed which would not have succeeded under one or other of the old C forms of action or their continued extensions. For this reason, if it be a good one, the acceptance of a general action may not be as important as is sometimes thought, save, of course, that its denial may lead to occasional individual injustices. A more daunting consequence of acceptance is the possible need for a re-arrangement of old-standing rules. Are the detailed rules to go and new ones to be derived from a broadly stated general principle? Or are the old ones to stand, and be D supplemented by a general action which will fill the gaps? The correct answers to these questions are not obvious. The second solution is preferable. In a rare case, where even an extension of an old action will not suffice, a general action should be recognised. The rules governing it should not be too difficult to establish (Paragraph [8] of Schutz JA's judgment at 487J - 488D.) E

However, if a general action were ever to be adopted into modern law, it would be wiser to wait for that rare case to arise which cannot be accommodated within the existing framework and which compels such recognition. Once a general action is accepted much less energy would be devoted to the correct identification of a condictio or an actio than at present and more time to the identification of the elements of enrichment. This does not mean, however, that the F old structure's relatively few distinctive rules applying only to particular forms of action, such as the requirement in...

To continue reading

Request your trial
61 practice notes
  • Reflections on the Sine Causa Requirement and the Condictiones in South African Law
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 August 2019
    ...Stelle nbosch on 27 October 2007 Thanks go t o Professor Jacques du Ple ssis for the invitat ion to participat e in this initiat ive1 2001 3 SA 482 (SCA) Se e also First National Ban k of Southe rn Africa Ltd v Perr y NO 2001 3 SA 960 (SCA) 971 2 McCarthy Retail Ltd v Short distance Car rie......
  • Some thoughts on the consequences of illegal contracts
    • South Africa
    • Juta Acta Juridica No. , August 2021
    • 23 August 2021
    ...Faber E nthoven (Pty) Lt d v Receiver of Re venue 1992 (4) SA 202 (A) 220J–221A; McCa rthy Retail Ltd v S hortdistan ce Carrier s CC 2001 (3) SA 482 (SCA) para 17; DP Visser ‘En richment’ i n W Joubert (found ing ed) Th e Law of South Africa vol 17 3 ed (2018) para 209(d) n 8 0; J du Plessi......
  • Financial Services Board and Another v De Wet NO and Others
    • South Africa
    • Invalid date
    ...Co (Pty) Ltd v National Co-operative Dairies Ltd 1997 (2) SA 671 (W): considered McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA): applied C Mining Commissioner of Johannesburg v Getz 1915 TPD 323: discussed and Minister of Agricultural Economics and Marketing v Virgini......
  • MN v AJ
    • South Africa
    • Invalid date
    ...Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA): referred to H McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) ([2001] 3 All SA 236): applied Nedcor Bank Ltd v Absa Bank and Another 1995 (4) SA 727 (W): referred to Rahim v Minister of Justice 196......
  • Request a trial to view additional results
46 cases
  • Financial Services Board and Another v De Wet NO and Others
    • South Africa
    • Invalid date
    ...Co (Pty) Ltd v National Co-operative Dairies Ltd 1997 (2) SA 671 (W): considered McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA): applied C Mining Commissioner of Johannesburg v Getz 1915 TPD 323: discussed and Minister of Agricultural Economics and Marketing v Virgini......
  • MN v AJ
    • South Africa
    • Invalid date
    ...Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA): referred to H McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) ([2001] 3 All SA 236): applied Nedcor Bank Ltd v Absa Bank and Another 1995 (4) SA 727 (W): referred to Rahim v Minister of Justice 196......
  • IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, Third Party)
    • South Africa
    • Invalid date
    ...Ltd [1968] 2 All ER 573 (CA) ([1968] 1 WLR 956): dicta at 972 and 975 H (WLR) applied McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA): considered Nel v Silicon Smelters (Edms) Bpk en 'n Ander 1981 (4) SA 792 (A): referred to Parkin v Smuts 1978 (3) SA 55 (T): I referre......
  • Business Aviation Corporation (Pty) Ltd and Another v Rand Airport Holdings (Pty) Ltd
    • South Africa
    • Invalid date
    ...(1) SA 147 (A) Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) D McCarthy Retail Ltd v Shortdistance Carriers CC 2001 (3) SA 482 (SCA) Weilbach en 'n Ander v Grobler 1980 (3) SA 998 Cur adv vult. E Postea (May 30). Judgment Brand JA: [1] This appeal has its origin in th......
  • Request a trial to view additional results
15 books & journal articles
  • Reflections on the Sine Causa Requirement and the Condictiones in South African Law
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 August 2019
    ...Stelle nbosch on 27 October 2007 Thanks go t o Professor Jacques du Ple ssis for the invitat ion to participat e in this initiat ive1 2001 3 SA 482 (SCA) Se e also First National Ban k of Southe rn Africa Ltd v Perr y NO 2001 3 SA 960 (SCA) 971 2 McCarthy Retail Ltd v Short distance Car rie......
  • Some thoughts on the consequences of illegal contracts
    • South Africa
    • Juta Acta Juridica No. , August 2021
    • 23 August 2021
    ...Faber E nthoven (Pty) Lt d v Receiver of Re venue 1992 (4) SA 202 (A) 220J–221A; McCa rthy Retail Ltd v S hortdistan ce Carrier s CC 2001 (3) SA 482 (SCA) para 17; DP Visser ‘En richment’ i n W Joubert (found ing ed) Th e Law of South Africa vol 17 3 ed (2018) para 209(d) n 8 0; J du Plessi......
  • What is wrong with modern unjustified enrichment law in South Africa?
    • South Africa
    • Sabinet De Jure No. 48-2, January 2015
    • 1 January 2015
    ...In view of this, the1 1966 (3) SA 96 (A).2 Birks Unjust Enrichment (2005) 39.3 Visser Unjustified Enrichment (2008) 3-54.4 CC 2001 (3) SA 482 (SCA).5 Sonnekus Unjustified Enrichment in South African Law (2008); Du PlessisThe South African Law of Unjustified Enrichment 390 2015 De Jurequesti......
  • The Relevance of the Plaintiff’s Impoverishment in Awarding Claims Based on Unjustified Enrichment
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 August 2019
    ...Mansfield in Ham bly v Trott (1776) 1 Cowp 371, 98 ER 113626 See 5 below27 See eg McCarthy Retail Ltd v Shortdi stance Carriers CC 2001 3 SA 482 (SCA) paras 15, 19-20 per Schutz JA and para 2 per Harms JA; Kudu Granite Ope rations (Pty) Ltd v Caterna Ltd 2003 5 SA 193 (SCA) para 17; Laco Pa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT